Final Rule on the Waters of the United States Continues to Make Waves

May 28, 2015
Jonathan E. Rinde
MGKF Special Alert

Yesterday, the United States Environmental Protection Agency and the United States Army Corps of Engineers jointly announced a final rule that redefines the geographic scope of "waters of the United States" (WOTUS). The new rule will have a profound effect on land development across the nation and can be found here.

The geographic scope of WOTUS forms the jurisdictional limits of the Corps' permitting authority under Section 404 of the Clean Water Act, and therefore affects land development of any type, whether for residential, commercial or industrial development, transportation projects, utility construction, or dredge and fill projects. The rule has been the subject of much controversy and over 1 million public comments, as well as the focus of several Congressional hearings, and the target of proposed federal legislation to repeal it.  The agencies have been grappling with the development of a cogent rule for years, particularly in the aftermath of the US Supreme Court's 2006 plurality decision in Rapanos v. United States, 547 U.S. 715 (2006), which refocused the agencies' efforts to define their Clean Water Act authority.

Of note for those involved with land development, the agencies state that the rule provides certainty with respect to the limits of federal permitting jurisdiction, which in the agencies' view will reduce the number of site-specific jurisdictional determinations that need to be performed. The rule also defines the term "tributary," which is a regulated water, as having the physical features of flowing water - a bed, bank, and an ordinary high water mark.  In contrast, the agencies state that "ditches" are not WOTUS if they are not constructed in streams and only flow when it rains. Importantly, the agencies also state that the rule confirms that groundwater, shallow subsurface flows, rills, gullies and erosional features are not regulated, and all of the agricultural permitting exemptions from the prior rule are maintained in the new rule.

In addition to the rule's effect on the Section 404 permitting program, the definition of WOTUS is also critical in the National Pollution Discharge Elimination System (NPDES) permitting program, as well the oil spill prevention and response program under Section 311 of the Clean Water Act.

While environmental groups applauded the new rule, it will most certainly be challenged by property owners, natural resource extraction groups and land developers. And it is unknown how the field level staff of the Corps, who handle the day-to-day processing of Section 404 permit applications, will interpret, implement and enforce the new rule.

If you would like more information regarding the rule, or its potential effects to upcoming or on-going projects, please feel free to contact Jonathan E. Rinde at 484-430-2325 or jrinde@mankogold.com or Christopher D. Ball at 484-430-2358 or cball@mankogold.com